SHOEMAKER v. STATE 80362 (1998)

 Claimants commenced this action to recover for injuries sustained by James R. Shoemaker (claimant) when he fell from a ladder at a construction site owned by defendant.   The Court of Claims properly granted claimants' motion for partial summary judgment on liability pursuant to Labor Law § 240(1) and denied that part of defendant's motion for summary judgment dismissing that cause of action.   Claimants established defendant's violation of the statute by submitting proof in evidentiary form demonstrating that claimant fell from an elevated work surface and that he “was not furnished with one or more of the enumerated devices ‘so constructed, placed and operated as to give proper protection’ ” (Bennion v. Goodyear Tire & Rubber Co., 229 A.D.2d 1003, 645 N.Y.S.2d 195, quoting Labor Law § 240[1];  see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Defendant failed to submit proof in evidentiary form raising a triable issue of fact (see, CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Because defendant is liable for claimant's injuries pursuant to Labor Law § 240(1), there is no need to address the contention of defendant that the court erred in denying that part of its motion seeking summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6) (see, Matter of General Bldg. Contrs. of N.Y. State v. Egan, 106 A.D.2d 688, 690, 483 N.Y.S.2d 746, lv. denied 65 N.Y.2d 601, 491 N.Y.S.2d 1026, 481 N.E.2d 258).

 Defendant's contention that claimants should have been precluded from presenting evidence of lost earnings at the trial on damages because they failed to disclose claimant's tax returns, W-2 forms and a verified list of past employers is not preserved for our review (see, CPLR 5501[a][3];  Marra v. Hensonville Frozen Food Lockers, 189 A.D.2d 1004, 1006, 592 N.Y.S.2d 525).   Defendant did not seek disclosure of those items or move to preclude evidence of lost earnings on that ground.   The court properly denied defendant's motion to preclude the testimony of claimants' economic expert.   Claimants' response to defendant's demand was sufficient to comply with CPLR 3101(d)(1)(i) (see generally, Jasopersaud v. Rho, 169 A.D.2d 184, 572 N.Y.S.2d 700).   The summaries of claimant's union records were properly received pursuant to CPLR 4518(a) (see, Sabatino v. Turf House, 76 A.D.2d 945, 428 N.Y.S.2d 752;  see also, R & I Elecs. v. Neuman, 81 A.D.2d 832, 438 N.Y.S.2d 832, lv. denied 54 N.Y.2d 605, 443 N.Y.S.2d 1028, 427 N.E.2d 513).   The evidence is sufficient to support the court's determination of claimant's past and future lost earnings (see, Johnston v. Colvin, 145 A.D.2d 846, 848-849, 535 N.Y.S.2d 833).   The court's finding that claimant is permanently partially disabled as the result of the accident is supported by the weight of the evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Colonno v. Executive I Assocs., 228 A.D.2d 859, 644 N.Y.S.2d 105), and the evidence is sufficient to establish a causal connection between the accident and claimant's thoracic outlet syndrome.

Judgment unanimously affirmed with costs.

MEMORANDUM: